FISA Amendments Act Renewed Reifies Surveillance State

Congress reapproved the controversial 2008 FISA Amendments Act extending the State’s mandate to use broad sweeping powers for domestic surveillance, the complete opposite effect for which the Foreign Intelligence Surveillance Act was initially signed into law in 1978. Senate Committee findings in the aftermath of the Watergate scandal where federal resources were discovered to have been used by the Nixon administration to spy on political activist groups prompted lawmakers to create judicial and congressional oversight of government surveillance activities while still providing intelligence agencies the secrecy needed to conduct investigations on “foreign powers” and Americans communicating with them. The idea was to strike a balance between intelligence agencies’ needs to intercept communications pertaining to plots to sabotage and attack the United States and US citizens’ constitutional rights to live free from unwarranted searches and seizures. For that reason Congress passed the FISA Act satisfying national security needs to undermine and intercept foreign plots while preserving civil liberties, in particular the right of US citizen to not have their communications eavesdropped on without a court warrant. For thirty years federal investigators would have to show probable cause to a FISA court (a special court of judges responsible for overseeing federal agents requests for surveillance warrants) that the “target of the surveillance is a foreign power or agent of a foreign power.” Intelligence agencies were emboldened by this law to carry out surveillance on actors subversive to US national security. Furthermore the FISA courts posed virtually no obstacle to intelligence agents seeking to obtain warrants. From the period 1979-2006 a total of 22,990 applications for warrants were made to the Court of which 22,985 were approved. In sum, FISA became primary tool for investigators to combat foreign threats and terrorism.

The 2001 Patriot Act, Protect America Act of 2007 and the reviled FISA Amendments Act of 2008, the one then Senator Obama vowed to filibuster on the grounds that “any bill” immunizing the telecommunications companies involved in assisting Bush/Cheney’s warrantless wiretapping program were responsible for having violated the constitution. Months after promising to block the bill that would extend state spying powers, Obama not only failed to filibuster the bill as sworn, but actually voted against a filibuster proposal by other senators. According to a position paper published by the ACLU, the purpose of the FISA Amendments Act “is to give the government nearly unfettered access to Americans’ international communications.” In addition the paper highlights eight other constitutional concerns the Act in question brings up:

1. The law gives the government sweeping surveillance power without requiring it to identify the targets of its surveillance.
2. The law allows the government to intercept U.S. citizens’ and residents’ international telephone and email communications without having to identify the facilities, phone lines, email addresses, or locations to be monitored.
3. The law allows the government to conduct intrusive surveillance without meaningful judicial oversight.
4. The law places no meaningful limits on the government’s retention and dissemination of information relating to U.S. citizens and residents.
5. Nothing in the law prevents the government from compiling huge databases of foreign intelligence information and searching those databases later for information about U.S. citizens and residents.
6. The law does not limit government surveillance to communications relating to terrorism.
7. The law gives the government access to some communications that are purely domestic.
8. The law immunizes the telecoms that participated in the Bush administration’s warrantless wiretapping program.

On Friday, the Senate debated the renewal of the Act once considered odious by Democrats, that is the Act that was at the center of the NSA warrantless wiretapping program initiated by Bush, the same Act Democrats rallied against in the name of protecting Americans from secret government and Big Brother. How the tides have changed with a Democrat in office.

Despite proposals from several Senate Democrats – Jeff Merkely, Ron Wyden and Republican Senator Rand Paul to attach three amendments providing minimal oversight of government surveillance activities the Senate voted against adding any civil liberties protections. The amendments proposed could not have been more modest. The first would simply require the NSA to provide lawmakers with an estimate of how many US citizens communications had been intercepted since the wiretapping programs conception. The second would prohibit the NSA from eavesdropping on US citizens on American soil without a warrant. And the third would compel the FISA courts to publicly release secret judicial rulings to demonstrate how the scope of the spying law is interpreted. All three amendments were shot down in the Senate and the House. Obama is expected to sign into law the Act that extends for five years the government’s authoritarian powers to spy on US citizens.

Supporters of the renewed FISA Amendments Act like Diane Feinstein who led the charge against Merkely, Wyden and Paul argue that the proposed amendments would hamper the government’s ability to utilize intelligence-gathering tools critical to maintaining national security and stopping terrorists. John Ashcroft and Dick Cheney made a virtually identical argument in defense of the 2001 PATRIOT Act. When lawmakers raised objections to the lack of oversights and vast powers the PATRIOT Act bestowed the government Ashcroft railed against them, accusing anyone who opposed the Act of being in league with the terrorists or not being sensitive to threat of terrorism. This was the false dichotomy propagated throughout the Bush years to paint civil liberties advocates as “un-American”, “unpatriotic” terrorist sympathizers. Apparently summoning that dichotomy to sideline opponents of domestic surveillance is still in vogue among the militaristic fans of unchecked governmental authority. Speaking against the proposed amendments Feinstein invoked the Democrat’s pretended enemy Cheney in a diatribe: one can only support the proposed amendments if “you believe that no one is going to attack us”. In other words, any lawmaker advocating oversight and transparency does not take terrorism seriously and may be responsible for causing “another 9/11”.

At the alleged height of “divided government” Democrats and Republicans are more unified than ever in their mission to expand the reach of the surveillance state. With over 1.7 billion emails, phone calls and other electronic communications being intercepted by the NSA daily there’s no telling what kind of information or how much information is being kept on law abiding citizens. The NSA’s refusal to provide lawmakers with even a rough estimate of how many people there are who have been ensnared in intelligence dragnet operations is an ominous sign of the sprawling reach of the government’s surveillance program. Last week’s revelation that Occupy protesters were heavily surveilled by the FBI and Joint Terrorism Task Force is an indicator of how laws like the FISA Amendments Act are being abused to gather intelligence on domestic targets. Other cases, like that of activist Leah Lynn-Plante who was remanded to a federal prison for refusing to cooperate with a grand jury investigation about the Northwest activists, a group identified by intelligence agencies as “anarchists”, show how “tools to combat terrorism” are being turned on the citizens who they purportedly protect. Last Friday’s debate about extending the government’s mandate to amass intelligence through extensive spying operations is a glaring example of how Democrats and Republicans have coalesced around the idea of normalizing a massive surveillance state. The Obama administration has entrenched the overarching reach of government Democrats once faked to passionately resist. The tentacles of distrust are growing and they are here to strangle anything that counters the awesome powers of the state.